Reported Decision : 129 A Crim R 559 New South Wales Supreme Court CITATION : Regina v Suteski [No 6] [2002] NSWSC 457 CURRENT JURISDICTION: Common Law Division Criminal List FILE NUMBER(S) : SC 70053/01 27/02/02 - 28/02/02 01/03/02 04/03/02 - 08/03/02 11/03/02 - 13/03/02 HEARING DATE(S) : 15/03/02 18/03/02 - 21/03/02 28/03/02 03/05/02 04/03/02 JUDGMENT DATE : 28 May 2002 PARTIES : Regina Sneza Suteski JUDGMENT OF : Kirby J COUNSEL : M Tedeschi QC/Ms N Adams (Crown) P Byrne SC/R Nicol (Accused) SOLICITORS : P Johnstone - DPP (Crown) R J Walsh, Murphy & Roskov (Accused) CATCHWORDS : Criminal Practice & Procedure - Sentence - Financial benefit by deception - Murder - Procuring assault - Alternative bases for murder - Contract killing/assault - Parity where other offenders already sentenced LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 R v Storey (1996-1997) 89 A Crim R 519 Olbrich v The Queen (1999) 199 CLR 270 R v Bavadra (2000) 115 A Crim R 152 Cheung v The Queen (2001) 76 ALJR 133 CASES CITED : R v Previtera (1997) 94 A Crim R 76 R v Irani; R v Sakisi [2001] NSWSC 475 R v Irani [2002] NSWCCA 153 R v Baartman (unreported, Dunford J, 18.12.98) Pearce v The Queen (1998) 194 CLR 610 DECISION : Sentence para 71 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL list DAVID KIRBY J Tuesday 28 May 2002 70053/01 - REGINA v SNEZA SUTESKI JUDGMENT [No 6] - SENTENCE 1 KIRBY J: On 27 February 2002, Ms Sneza Suteski was indicted on ten charges. The first charge was that on 20 December 1999 at Carlton she did murder Richard Peich (s19A Crimes Act 1900). The remaining nine charges were that she had, on various dates between 4 August 1999 and 19 January 2000, obtained a financial benefit by deception (s178BA Crimes Act 1900). 2 Ms Suteski pleaded not guilty to murder. However, she pleaded guilty to the nine charges of obtaining a financial benefit by deception. When entering that plea, Ms Suteski asked that an additional 68 offences on a Form 1 be taken into account when she is sentenced. The total amount involved in the deception was $289,075.56. 3 These pleas were entered in front of the jury. The evidence in relation to obtaining a financial benefit by deception formed part of the Crown case in respect of murder. The trial proceeded. On 21 March 2002, the jury found Ms Suteski guilty of murder. 4 It remains for me to now pass sentence. In order to do so, I must determine the facts relevant to the sentencing discretion. In respect to the charge of murder, that determination must be made in a manner consistent with the jury verdict. Where the facts are adverse, they must be established beyond reasonable doubt. Where they favour Ms Suteski, it is enough that they should be proved on the balance of probabilities (R v Storey (1996 - 1997) 89 A Crim R 519; Olbrich v The Queen (1999) 199 CLR 270). The Financial Benefit by Deception Charges 5 Ms Suteski was born on 17 August 1978. In January 1999, she began working for a car dealer known as Newman's of Kogarah. She was the Accounts Payable Clerk. Her function was to receive invoices from suppliers to Newman's and to prepare documentation which would enable their payment. The documentation was submitted to her supervisor, Mr Richard Peich. Mr Peich was employed as an accountant by Newman's. If satisfied with the documentation, Mr Peich would authorise payment. 6 Payment was effected either by cheque or electronically. Many of the regular suppliers to Newman's had furnished their banking details. That information was stored in the company's computer. Once approval had been given, Ms Suteski was required to prepare a floppy disc recording the payments which had been approved, and the party to be paid. The managers at Newman's, by entering certain numbers in the computer, could then access the Newman's bank accounts and, using the floppy disc, could electronically transfer funds from these accounts to the suppliers. 7 Ms Suteski practised her deception in two ways. The first was in the preparation of the floppy disc. Ms Suteski went into the database and changed the bank account number of the supplier to a number she selected. By this means, she diverted money which had been approved for payment to the supplier, to her own account, or that of her brother or boyfriend. On one occasion Ms Suteski diverted $1,791.00 to the account of Mr Ben Sakisi, a person involved in the death of Mr Peich. 8 The second method used by Ms Suteski was to present to Mr Peich, for a second time, invoices which had already been paid. Once approval had been given, the money could then be diverted to an account of her choosing, employing the method described. 9 By this means, Ms Suteski, on 77 separate occasions, obtained a financial benefit by deception, giving rise to the nine counts in the indictment and the 68 matters on the Form 1. 10 The offences began on 15 June 1999, approximately five months after Ms Suteski began at Newman's. The last offence was on 19 January 2000. Ms Suteski was arrested on 24 January 2000. The break-down, month by month, is instructive. It is relevant to the charge of murder. In the period before the murder (which was on 20 December 1999), it was as follows: Month Number Amount $ June 1999 1 3,295.00 August 1999 7 29,243.80 Sept. 1999 13 34,464.59 October 1999 9 29,147.04 Nov 1999 22 72,968.80 Dec 1999 8 21,248.60 (before 20/12/99) 11 After the murder, between 21 December 1999 and 23 December 1999, there were six further offences yielding $31,932.91. 12 The accounts department of Newman's, it appears, closed down over Christmas. It reopened on or about 4 January 2000. Between 4 January 2000 and 19 January 2000 there were eleven further offences, involving $66,774.82. The total amount stolen was, as mentioned, $289,075.56. 13 The offences are plainly serious. They are the more serious because they followed similar conduct in the preceding year. Between January 1998 and April 1998, Ms Suteski practiced a deception upon her then employers, DHL International, diverting over $98,000.00 of its money to her account. The method used to obtain that money was rather less sophisticated than that employed by Ms Suteski at Newman's. At DHL International, she duplicated invoices and presented the duplicates to different managers for approval. Once approved, Ms Suteski made out a cheque payable to cash. The cheque stub was filled out with the name of the supplier to deflect the suspicions of audit staff. The cheques were either cashed or banked in her personal account. 14 The fraud on DHL International was discovered after an internal investigation. Ms Suteski was interviewed. She admitted having taken the money. Her services were terminated on 29 July 1998. A meeting was arranged with her father and her brother on 18 September 1998. DHL chose not to prosecute upon Ms Suteski entering an agreement containing certain conditions. The agreement was signed on 2 October 1998. It incorporated the following conditions: "1. Your father, Mr Suteski, is to pay DHL the amount of $98,347.69. 2. You are to undertake a formal drug counselling programme. ..." 15 The money was duly paid by Ms Suteski's father. Ms Suteski was therefore given a second chance. Within a year (15 June 1999), Ms Suteski again began stealing money from her employer. 16 The criminality involved in the nine offences in the indictment, and those in the Form 1, must take account of the fact that the deception was practiced over eight months, involved 77 separate offences, and yielded the sum of $289,075.56. The Crown suggested that the offences were the worse because of the sophisticated means used to deceive her employer. The commission of the offences certainly required an understanding of computers, which Ms Suteski had. There was evidence that the fraud was difficult to detect. The offences appear to me, however, not terribly sophisticated. Most of the money ($164,608.46) was diverted directly to Ms Suteski's account. The remainder (apart from the cheque to Mr Sakisi), was paid to persons closely associated with Ms Suteski, namely her brother ($105,083.58), and her boyfriend ($17,592.52). It was inevitable that, at some point, suspicions would be aroused. Once aroused, the person responsible was obvious. 17 The maximum penalty under s178BA is five years. Ms Suteski pleaded guilty on the first day of the trial. The sentence which would otherwise be appropriate should be discounted by 10% to reflect that plea (s22 Crimes (Sentencing Procedure) Act 1999). The offences on the Form 1 will be taken into account in respect of Count 2, in accordance with R v Bavadra (2000) 115 A Crim R 152. 18 I will return to the question of sentence in respect of these offences once I have considered the subjective case of Ms Suteski. Alternative Bases for Murder 19 I will now turn to the conviction for the murder of Mr Richard Peich. Mr Peich died on 20 December 1999. He was repeatedly stabbed by Walid Irani. It was the Crown case that Ms Suteski had procured Mr Irani to harm Mr Peich, and that she was, in law, responsible for his death. That responsibility, on the Crown case, arose in one of two ways. Either: · Ms Suteski procured Mr Irani to kill or assault Mr Peich with intent that he should suffer grievous bodily harm; or · She procured some lesser form of assault (falling short of grievous bodily harm) yet contemplated the possibility that, in the course of carrying out that assault, Mr Irani may use a dangerous weapon such as a knife, with the intention of inflicting grievous bodily harm upon Mr Peich. 20 The jury simply returned a verdict of guilty of murder. That verdict signified an acceptance, beyond reasonable doubt, of one or other of these alternatives. There is a significant difference in the moral culpability attaching to each. Before passing sentence, I must determine, upon the basis of the evidence, the nature of the attack upon Mr Peich which Ms Suteski procured. Only then can a selection be made between the alternatives (Cheung v The Queen (2001) 76 ALJR 133, per Gleeson CJ, Gummow & Hayne JJ at paras 5 and 8). Mr Byrne SC, for Ms Suteski, urged the second of these alternatives. The Nature of the Assault Procured 21 Ms Suteski did not give evidence at the trial. Nor did she give evidence on sentence. When interviewed by the police, she declined to answer questions until she had spoken to her solicitor. However, she did make the following comment in the course of that interview: (Exhibit J, Q51) "A. ... Things went out of hand and I, I don't know what happened, so, but I did not kill him." 22 The Crown case included evidence from Ms Suteski's boyfriend, Mr Bradley Barnes. Mr Barnes gave evidence of a telephone conversation with Ms Suteski on 29 January 2000, a matter of days after her arrest. He said this: (T313) " A. ... I asked her why she couldn't come home, why she was in trouble for? She briefly explained to me that some guys, she had some guys to rough up a guy from her work and they stuffed up and killed him. ..." 23 Mr Barnes was not cross examined on that evidence. The trial was conducted on behalf of Ms Suteski upon the basis that some form of attack had been procured by her upon Mr Peich. The issue posed to the jury by Mr Byrne SC (appearing for Ms Suteski) was: What kind of attack was it that Ms Suteski had ordered? 24 Having been convicted, Ms Suteski was interviewed by Ms Hammond of the Probation and Parole Service. The report prepared by that Service included the following statement which she made in the course of that interview: "She stated that she only ever sought to have the victim 'bashed', the definition of which she offered as 'a black eye'." 25 The account Ms Suteski gave a psychologist, Ms Barrier, on 29 April 2002 was rather more elaborate. The report prepared by Ms Barrier to assist on sentence, included the following: (Exhibit 1, p6) "Sneza stated that the deceased was Mr Peich, an accountant at Newman's Motors. He sat behind her in the office and often observed her work practices. She needed him away for a couple of days so she could 'cover my tracks' in relation to the fraudulent offences she had been committing. She had spoken to her friend Kaycee Salem about this and she had in turn introduced Sneza to her boyfriend Ben Sakisi. He agreed to have Mr Peich 'bashed'. Sakisi then hired Walid Irani. Subsequently Irani had assaulted Mr Peich and during the course of that assault, had stabbed him six times in the chest. Mr Peich died of his wounds. Sneza stated it was never her intention that Mr Peich be killed." 26 On the Crown case, there were four persons involved in the crime which culminated in the death of Mr Peich. They were: · Ms Suteski who procured the crime. · Her hairdresser, Ms Kaycee Salem, whom she approached for assistance. · Mr Ben Sakisi, the boyfriend of Ms Salem, a drug dealer who arranged for the assault to be carried out. · Mr Walid Irani, recruited by Mr Sakisi, and the person who stabbed Mr Peich, thereby causing his death. 27 It was common ground that the crime procured was some form of bashing rather than the death of Mr Peich. The issue for the jury, and ultimately for me, was how severe was the bashing which Ms Suteski ordered? Two matters were identified as convenient indices of the severity of the bashing procured. The first concerned discussions which were said to have taken place concerning the weapons that might be used in the course of the assault. The Crown contended that Ms Suteski gave those who were to carry out the bashing a "blank cheque", knowing the sorts of weapons that might be used. 28 The second index of severity was the time that Mr Peich was expected to be off work as a consequence of the injuries inflicted. Was it a matter of days, as suggested by Ms Suteski to Ms Barrier, the psychologist, or was it a matter of weeks, as other witnesses had testified? 29 Ms Kaycee Salem gave the following evidence of a conversation with Ms Suteski at the hairdressing salon approximately one month before Mr Peich's death: (T174) "Q. What did she ask you? A. She asked me if I knew anyone that could hurt somebody at her work. Q. Yes? A. And I said 'No'. She said, 'Could you ask Ben', and I said 'no', not to ask him, because I didn't want him to have anything to do with it. Q. You didn't want him to get into trouble? A. Yeah. Q. Did she say how she wanted someone hurt, what she wanted done to them? A. She just said that she wanted someone hurt at work; she didn't want him dead, she just wanted him stabbed or broken arms or something like that. Q. Did she say why she wanted this person hurt by being 'stabbed or broken arms or something like that'? A. So she could steal some money." 30 Ms Salem's evidence must be approached with caution. She was, arguably, an accomplice. She received an indemnity in return for undertaking that she would give evidence for the Crown. There were significant discrepancies on other aspects of her evidence. When giving evidence at the committal, Ms Salem testified that Ms Suteski said nothing about wanting Mr Peich stabbed. She added, when giving evidence in the present trial, that she recognised that she had made a mistake on that issue as she walked out of court. Stabbing was mentioned. 31 Mr Irani gave evidence for the Crown. He said that he was first approached by Mr Sakisi. He was told that someone wanted someone bashed, "a broken arm or broken leg or something". The person bashed was to be away from work for "one, two or three weeks", to enable certain frauds to be perpetrated. He would be paid $2000 or $3000. Mr Irani agreed to do the job. Arrangements were then made for him to meet Ms Suteski. They met, according to his testimony, at Ms Salem's flat in Rockdale about three weeks before the murder. Mr Sakisi was present, as was Ms Salem, who was in the background. During the meeting, the following conversation took place, according to Mr Irani: (T47) "Q. And the second thing was how they wanted him hurt. Who described that? A. Well, they didn't - I asked what they wanted, like what kind of injury. They didn't say for sure. They just said, just - I asked whether baseball bat or knife or just punch him or whatever, you know how I mean, and they didn't say for sure what. It was up to me." 32 Mr Irani added, referring to Ms Suteski: (T48) "A. Well, I asked 'How did you want this guy hurt?', and she just said, 'Bash him. Stab him. Kill him. I don't give a fuck what you do to him, as long as he doesn't show up for work.'" 33 Mr Irani's evidence must also be approached with caution. He was an accomplice. Indeed, he acknowledged having stabbed Mr Richard Peich. He pleaded guilty to murder. When being sentenced, he had offered to assist the Crown. The sentence imposed upon him had been discounted significantly in recognition of that assistance. Mr Irani also had a number of criminal convictions. He was a drug addict. His account on some issues varied significantly. He acknowledged that counsel appearing for him on sentence had suggested that the incident started out (and was, inferentially, in the mind of Ms Suteski) as something relatively minor; something that got completely out of hand, a "touch up", a "roughing up" of Mr Peich. 34 Ms Salem's evidence provided no corroboration of the account given by Mr Irani. She recalled an occasion where Ms Suteski came to her flat at the Rockdale Plaza and spoke with Mr Sakisi and Mr Irani. However, according to her testimony, the meeting took place on the night of the murder, not three weeks before. She was not a party to the conversation. She could give no evidence as to what was said. 35 Mr Sakisi did not give evidence. However, a video interview with him conducted by the police on 25 January 2000 was tendered (Exhibit N). It provided a measure of support for the account of Mr Irani. Mr Sakisi said that Ms Suteski wanted Mr Peich off work for two weeks (Q85). They were to be paid $2000 or $3000 (Q91). The interview included the following: (Exhibit N) "Q279 I've been told that Snez said words to the effect of break his knees or his legs, do you recall her saying that? A. Beg yours? Q280 Break his knees or his legs? A. She wanted something like that. Q281 Right. A. Something, like, that was - " 36 Mr Sakisi was also an accomplice. He pleaded guilty to being an accessory before the fact of malicious wounding with intent to do grievous bodily harm. He was sentenced to ten years imprisonment by Barr J on 15 June 2001. He had other serious convictions. He was a drug dealer. He was, of course, not cross examined. 37 I have no doubt that Mr Irani did not set out to kill Mr Peich and had not been procured by Ms Suteski to do so. The best guide to what he had been commissioned to do was what he did. He armed himself with a hammer. The hammer had a metal head and a wooden handle. Within the car, which he had used to travel to the St George Leagues Club, he had a knife. The knife had been left in the car by Mr Sakisi a short time before. Before setting out for the club, Mr Irani placed the knife inside a sock in case it fell to the ground, so that he could better see it in the dark. 38 Mr Irani lay in wait for Mr Peich at the club on the night of 20 December 1999. As he waited outside the car, he probably did not, at that point, have the knife with him. He described what he intended in these words, which I accept: (T58) "Q. What were you going to do with the hammer? A. Strike him on the head. Q. Where? On the? A. On the head. Q. What were you hoping to do by striking him on the head? A. Just injure him. Maybe give him a fractured skull or something." 39 When Mr Peich emerged from the club he was with a woman. There was a security guard nearby. Mr Irani therefore abandoned his plan to strike Mr Peich at the club. He drove to Mr Peich's home, which was nearby. He parked the car. He armed himself with the hammer. He also took the knife, which was inside the sock. As he passed Mr Peich on the footpath, he turned and struck him with a hammer on the back of the head. Mr Irani said that he was expecting Mr Peich to immediately lose consciousness. Instead, he remained on his feet. Indeed, he turned around and looked at Mr Irani shocked. Mr Irani struck him again. He did so with such force that the hammer broke and fell to the ground. Still Mr Peich did not fall. Indeed, he endeavoured to defend himself, hitting Mr Irani. Mr Irani then lunged at him a number of times with the knife, penetrating his heart and bringing about his death almost at once. 40 I am satisfied beyond reasonable doubt that the assault procured by Ms Suteski involved inflicting grievous bodily harm upon Mr Peich. I accept that weapons were discussed, including baseball bats and knives, and that Ms Suteski was content to leave it to Mr Irani. I accept that Ms Suteski's purpose, or a substantial part of her purpose, in arranging the assault, was to perpetrate further fraud, as she duly did. Indeed, on the day she learned of Mr Peich's death, 21 December 1999, Ms Suteski committed a further four offences, yielding her $21,788.26. I accept that, to accomplish her objective, Ms Suteski required Mr Peich to be away from work for about two weeks. She could not, by the method which she had perfected, steal more than several thousand dollars at a time, without fear of arousing suspicion. She therefore needed time, at least two weeks, to accumulate the sizeable amount which she intended to, and did, divert from her employer's funds into her own. That two weeks is a convenient index to the level of violence that Ms Suteski had in mind. The use of the hammer by Mr Irani was, I believe, well within her instructions, as was the use of a dangerous weapon, such as a knife. Part of her purpose may also have been "to cover her tracks", as she alleged. 41 Quite apart from procuring this crime, Ms Suteski gave assistance in its execution. She provided Mr Sakisi and Mr Irani with information which would enable them to identify Mr Peich. She provided a description of Mr Peich, his age, his address, his telephone number, his car registration, and his habits, including his habit of attending the St George Leagues Club. Ms Suteski identified his car in the carpark of the St George Leagues Club, although there is some uncertainty as to when that was done. 42 On the night of the murder, Ms Suteski accompanied Mr Sakisi to the club. The Crown case included video surveillance footage from cameras within the club. They showed the vehicle of Ms Suteski arriving with Mr Sakisi at the club at 7.07 pm. Mr Peich was already in the club. He remained within the club for a number of hours. Throughout that time, mobile phone records show phone calls between Mr Sakisi and Mr Irani (who was in the carpark) during the evening. 43 At 10.20 pm Mr Sakisi left the club. The video surveillance shows him leaving by car at 10.21 pm. Ms Suteski remained behind. Mr Peich, as it happened, decided to leave the club soon after. The video showed him in the foyer of the club at 10.26 pm. Shortly before he entered the foyer, but after Mr Sakisi had already left, the mobile phone records show a call at 10.24 pm on Ms Suteski's phone to Mr Irani's phone. I infer that Ms Suteski made that call, alerting Mr Irani to the fact that Mr Peich was at last leaving. 44 Mr Byrne SC, for Ms Suteski, pointed out that Mr Irani did not suggest that the call came from Ms Suteski. He said that it came from Mr Sakisi. However, on that aspect, I believe he is mistaken. I am satisfied that the call at 10.24 pm came from Ms Suteski. The Objective Seriousness of the Offence 45 This was not a contract killing. It was, however, a contract to carry out a very serious assault, inflicting grievous bodily harm, upon an unsuspecting and blameless individual. It was a contract which led to his death. 46 Murder has always been regarded as the most serious offence in the criminal calendar. Absent extraordinary circumstances, it calls for a substantial sentence by way of imprisonment to serve the interests of punishment, including general deterrence. Mr Peich was, on all accounts, a good man and a loyal employee. His mother, and members of his family, have attended court each day throughout this trial. One can only imagine their agony and sympathise with their loss. However, the sorrow of those who remain behind is not a matter which I should take into account, and I do not do so (R v Previtera (1997) 94 A Crim R 76 at 85). 47 Before considering an appropriate sentence in respect of the various charges for which Ms Suteski stands convicted, I should turn to the personal circumstances of Ms Suteski, relevant to murder, and also to the charges involving fraud, to which she pleaded guilty. The Subjective Circumstances of Ms Suteski 48 Ms Suteski is now almost 24 years. She was born in Australia of Macedonian parents. Her parents are described as hard working. They provided a good home. Ms Suteski is said to be quite intelligent. She completed the Higher School Certificate and an accountancy diploma. Her life was uneventful until the difficulties with DHL International in 1998. Two problems emerged at about that time. The first was drug taking, and the second gambling. Ms Suteski emphatically denied drug taking in recent interviews, both to the Probation and Parole Officer, Ms Hammond, and the psychologist, Ms Barrier. However, the Agreement of 2 October 1998 with DHL International, which she signed, suggested drugs may have been a problem. Gambling was certainly a problem by 1999, both on poker machines and at the Casino. 49 The psychologist, Ms Barrier, administered tests which suggested that Ms Suteski does, to a degree, suffer from major depression. 50 Dealing with contrition, Ms Hammond, the Probation Officer, said this: "She displayed little contrition when discussing her offending behaviour." 51 Ms Barrier made the same observation. She said: (p 8) "Her personality test results indicate a self involved individual who would exhibit an intrinsic unfeeling cold quality. She would have little investment in close personal relationships and limited insights into the effect of her behaviour on others. Her minimal expressions of remorse are consistent with her personality construct." 52 Ms Suteski has not shown any real remorse. She has yet to acknowledge responsibility for the shocking crime which she procured, and which led to the death of Mr Peich. The statement to Ms Hammond that she had in mind for Mr Peich "something like a black eye" illustrates her difficulty. It is plain that she intended something much worse, significant injury, something which would prevent Mr Peich attending work for at least two weeks. 53 I have been urged to find special circumstances (s44(2) Crimes (Sentencing Procedure) Act 1999). Ms Suteski is a relatively young woman. She plainly has a problem with gambling, if not drugs. She may well benefit from an extended period of supervision. In other circumstances, a finding of special circumstances would be justified. However, necessarily, the parole period must itself be significant, and is sufficient in my view without adjustment. Parity of Sentencing 54 Mr Irani pleaded guilty to murder before Barr J. On 15 June 2001 he was sentenced to a term of imprisonment of 20 years, with a non parole period of 15 years. The sentencing Judge made a number of observations and findings which are relevant to an understanding of the sentence which he imposed, namely: · First, that Mr Irani was almost 20 years old at the time he murdered Mr Peich. · Second, that he was a drug addict, addicted to heroin. He found the offer of money to assault Mr Peich a temptation which was irresistible. · Third, that he had demonstrated, including by his plea of guilty, some contrition. His Honour, nonetheless, had some hesitation in accepting Mr Irani's expressions of remorse. · Fourth, that Mr Irani had offered to provide assistance, which was both significant and useful. · Fifth, that the appropriate discount for the plea of guilty and the offer of assistance was 40%. · Sixth, that Mr Irani's prospects of rehabilitation were reasonable, if he were able to put the drug problems behind him. 55 In these circumstances, Barr J said this (R v Irani; R v Sakisi [2001] NSWSC 475): (para 28) "A contract murder done with intent to kill would have attracted the maximum sentence. No allowance would be appropriate for the offender's addiction to drugs and what he saw as his lack of choice when offered money for his services. Of course, this was not a contract to kill and I am obliged to sentence the offender upon the basis that he agreed and intended only to do Mr Peich grievous bodily harm. That removes this murder from the worst category of murders, but the crime was still very serious because Irani acted in cold blood and for reward and planned his attack with a great deal of care." 56 The sentence imposed, therefore, reflected a starting point of 33-1/3 years before applying the 40% discount. 57 Mr Irani appealed against that sentence. He asserted that it was too severe. The Court of Criminal Appeal (R v Irani [2002] NSWCCA 153) (Sheller JA, Levine and Simpson JJ) dismissed the appeal. Simpson J, with whom other members of the Court agreed, said this: (para 26) "I am unable to conclude that the sentence imposed was manifestly excessive. I am not satisfied, firstly, that the starting point of thirty three and one third years was, for what was in essence a contract killing (although not intended to be a killing) was outside the range properly available (although I accept that it was a heavy starting point); I am not satisfied, secondly, that the applicant's plea of guilty or his assistance warranted a more substantial discount than a total of 40%; and I am far from satisfied that the sentence ultimately imposed did other than recognise the objective seriousness of the applicant's crime." 58 Her Honour added: (para 30) "In my opinion the sentence imposed was not manifestly excessive and was a proper one to reflect all of the circumstances. The sentencing remarks show that all relevant factors were taken into account. Another judge may have given more weight to some circumstances resulting in a lower sentence, but that is not of itself indicative of error. No error has been identified. I would, accordingly, grant leave to appeal but dismiss the appeal." 59 Mr Sakisi also pleaded guilty before Barr J. The plea was entered to the alternative charge of accessory before the fact of malicious wounding with intent to do grievous bodily harm. Mr Sakisi was sentenced to a term of imprisonment of 10 years with a non parole period of 7 years. In his sentencing remarks, Barr J said this: (para 39) "For sentencing purposes the fact of the unfortunate death of Mr Peich must be put aside. The offence of which Sakisi has been convicted contemplated only the infliction of grievous bodily harm. The criminality involved the meetings and planning to which I have referred. It was done coolly and for financial gain and in utter contempt of Mr Peich, a man whom Sakisi did not know and who had done him no offence. These features combine to make the offence a very serious one of its kind. ..." 60 Mr Byrne SC, in his submissions on behalf of Ms Suteski, urged that the sentence of Mr Sakisi was a better guide, in the context of Ms Suteski, than the sentence of Mr Irani. Indeed, he argued that the criminality involved in the crime of Mr Sakisi was greater than that of Ms Suteski, since Mr Sakisi, but not Ms Suteski, intended grievous bodily harm. That argument obviously presupposes an acceptance of the alternative basis for the verdict of murder, that is a lesser form of assault, not involving grievous bodily harm. I have, however, rejected that alternative. I believe Ms Suteski intended, and procured, an assault with grievous bodily harm. The charge against Mr Sakisi was therefore a different and lesser charge. In determining the appropriate sentence for Ms Suteski, I do not find great assistance from the sentence imposed upon Mr Sakisi. 61 The sentence upon Mr Irani is a better guide. Each shared the common purpose to assault Mr Peich, causing grievous bodily harm. The moral culpability of Ms Suteski, as the procurer, is arguably greater than that of Mr Irani. Here, I believe the criminality on the part of Ms Suteski is at least that of Mr Irani. There was a cold premeditation and persistence in her actions. She was to be the beneficiary of Mr Peich's disablement. 62 Barr J, when sentencing Mr Irani, selected a sentence of 33 -1/3 years as reflecting the objective criminality of his crime. That was characterised as a "very heavy starting point" by the Court of Criminal Appeal, but not one which was manifestly excessive. 63 I believe with respect, however, that a starting point exceeding 30 years is excessive. In R v Baartman (unreported, 18.12.98) Dunford J sentenced John Baartman for murder after a retrial. John Baartman and Paul Crofts had been charged with murder. They undertook a contract shooting of a person, "Tony", who lived in Lugarno. Their instructions were to shoot him in the leg. They were provided with his address. The crime, in its execution, went badly wrong. Mr Baartman and his companion went to the wrong house. They shot the wrong man. The man they shot was shot in the abdomen, not the leg. He died almost at once. 64 After the first trial before Abadee J and a jury, Mr Baartman was convicted. He was sentenced to 20 years imprisonment with a non parole period of 15 years. There was a successful appeal and a retrial before Dunford J. Paul Crofts, in the meantime, had pleaded guilty to murder before Grove J. Grove J expressed the view that objectively the appropriate penalty was of the order of 30 years penal servitude. Given the sentence of Mr Baartman, Grove J sentenced Paul Crofts to the same term of imprisonment and non parole period. 65 Dunford J, when resentencing Mr Baartman, expressed some sympathy for the views expressed by Grove J. However, being a resentence, he reimposed the same sentence originally imposed by Abadee J. The use of a gun in that case, in my view, made the planned assault significantly worse and more dangerous than the assault upon Mr Peich. 66 Submissions on sentence in this matter were made on 3 May 2002. The Irani appeal was listed for hearing before the Court of Criminal Appeal on 6 May 2002. I was urged by counsel not to sentence Ms Suteski until after the Court of Criminal Appeal had delivered its judgment. At the time that seemed to me sensible. I believe the Court of Criminal Appeal was told that I had heard submissions, and was awaiting the result of the Irani appeal. It therefore delivered its reasons with despatch, dismissing the appeal. 67 However, with hindsight, I believe it was unfortunate that the Court of Criminal Appeal did not postpone its determination of the sentence appeal by Mr Irani until after Ms Suteski had been sentenced. There was no urgency in Mr Irani's appeal. In determining Mr Irani's appeal, and any appeal by Ms Suteski, the Court would then have had a range of views from which it could determine whether either sentence was excessive or inadequate and whether either had a justifiable sense of grievance. The Appropriate Sentence 68 In fixing upon a sentence it is necessary that separate sentences be identified in respect of each count. In determining such sentences, I should have regard to the principle of totality, giving consideration at the same time to whether the sentences should be concurrent or cumulative (Pearce v The Queen (1998) 194 CLR 610). 69 Mr Byrne SC, on behalf of Ms Suteski, urged that the sentences should be concurrent, with some adjustment to recognise the overall criminality. Although there are common aspects, I believe it appropriate to partially accumulate the sentences on the fraud charges. 70 I will structure the sentences shortly to conform with Pearce. I should take account of 36 days imprisonment from Ms Suteski's arrest on 24 January 2000 to her release on bail on 1 March 2000. I revoked bail on Monday 25 February 2002. The sentences will date from that time. The overall sentence, including a partial accumulation of two years on the fraud charges, is 24 years with a non parole period of 18 years. I have subtracted the 36 days from the termination date, both for the non-parole period and the total sentence. 71 SNEZA SUTESKI, you are sentenced as follows: 1. On Count 2, including the Form 1, to a term of imprisonment of 4-1/2 years commencing on 25 February 2002 and ending on 24 August 2006, with a non parole period of 3 years commencing on 25 February 2002 and ending on 24 February 2005. 2. On Counts 3 to 10 inclusive, a fixed term of imprisonment of 3 years commencing on 25 February 2002 and ending on 24 February 2005, concurrent. 3. On Count 1, murder, a term of imprisonment of 22 years less the 36 days before your release on bail on 1 March 2001, commencing on 25 February 2004 and ending on 20 January 2026; with a non parole period of 16 years (less the 36 days) commencing on 25 February 2004, and ending on 20 January 2020. ********** Last Modified: 05/29/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.